Forty years ago, the small and underdeveloped nations on the mountainous western edge of South America formed a regional integration pact to promote economic growth, regulate foreign investment, and harmonize national laws. Overall, their enterprise has not turned out well. Riven by political schisms, economic shocks, and weak domestic legal and judicial systems, the five principal countries of the Andean Community—Bolivia, Colombia, Ecuador,Peru, and Venezuela— have failed to live up to their potential as South America's second largest trading bloc. The member states have relaunched the Andean integration project and revised its policies on multiple occasions, with at best only mixed results. Not surprisingly, most commentators have ignored the Andean Community or dismissed it as a failure.
1 Andean Subregional Integration Agreement, May 26, 1969, 8 ILM 910 (1969) [hereinafter Cartagena Agreement].
2 The composition of the Andean integration project has shifted over time. The five founding members of the Andean Pact in 1969 were Bolivia, Chile, Colombia, Ecuador, and Peru. Venezuela joined the group as a sixth member in 1973. Chile withdrew in 1976 after the coup by Augusto Pinochet. In 2006 President Hugo Chávez withdrew Venezuela from the Andean Community, and Chile rejoined it as an associate member.
3 See, e.g., Walter, Mattli The Logic of Regional Integration 12, 42 (1999) (characterizing the Andean Pact as one of several “integration schemes [that] have failed at the implementation stage” because their “stated integration goals and subsequent achievements were far apart”); Metcalf, Katrin Nyman & Papageorgiou, Ioannis E. Regional Integration and Courts of Justice 21–23 (2005) (discounting the achievements of the Andean Community and emphasizing its “perpetual internal crisis,” including recent political schisms involving Venezuela and Bolivia); Nora Anton, Bolívar’s Dream Come True? Regional Integration and Development in the Andean Community 1–2 (Master Thesis, European Studies, University of Münster, 2006) (stating that “most political and academic discourse on the Andean Community agrees [that the] integration process has, up to now, not been very ‘successful’, and quite often it is called a complete failure”).
However, in several recent works Latin American legal scholars and attorneys analyze the Andean Community’s legal structure and the activities of the Andean Tribunal of Justice. See, e.g., Quindimil LÓpez, Jorge Antonio Instituciones Y Derecho de la Comunidad Andina (2006); Torres, Marcel Tangarife Derecho de la IntegraciÓn en la Comunidad Andina (2002); Baquero–Herrera, Mauricio The Andean Community: Finding Her Feet Within Changingand Challenging Multidimensional Conditions , 10 Law & Bus. Rev. Am. 577 (2004); Galarza, César Montaño Constitución ecuatoriana e integración andina: La situación del poder tributario del Estado, in 2004–I Anuario de Derecho Constitucional Latinoamericano 949 [hereinafter Anuario]; Toledo, Ricardo Vigil La consulta prejudicial en el Tribunal de justicia de la Comunidad andina , 2004–I Anuario, supra, at 939 ; Jorge Luis, Suárez Mejías Integración y supracionalidad en la Comunidad andina proceso decisorio, sistema jurisdiccional y relación con los derechos nacionales (PhD thesis, Universidad complutense de Madrid, 2006).
4 The full texts of judgments of the ATJ are available, in Spanish only, on the Web site of the Andean Community. Procesos del Tribunal de justicia andino, at < (follow “Documentos Oficiales” hyperlink; then follow “Procesos del Tribunal de Justicia” hyperlink).
5 The two most active international courts in terms of number of cases decided are, first, the European Court of Human Rights and, second, the European Court of Justice (ECJ) and its Court of First Instance. See Karen, J. Alter Private Litigants and the New International Courts , 39 Comp. Pol. Stud. 22, 26–27 (2006).
6 We define effectiveness as the degree to which international rules or tribunal rulings produce “observable, desired changes in behavior.” Raustiala, Kal Compliance & Effectiveness in International Regulatory Cooperation , 32 Case W. Res. J. Int’l L. 387, 394 (2000) (citing numerous international relations scholars who define effectiveness in these terms).
7 We follow a narrow, formal definition of “rule of law” that requires “the government [to] be ruled by the law and subject to it.” Raz, Joseph The Rule of Law and Its Virtue, in The Authority of Law 210, 212 (1979). This definition stresses the “certainty and predictability of governmental action… [and the] actual equality of legal treatment” in “relations between citizens[,] and between citizens and their government.” Summers, Robert S. A Formal Theory of the Rule of Law , 6 Ratio Juris 127, 131, 129 (1993). The antithesis of the rule of law, according to this definition, exists where public officials or economic or political elites employ extralegal channels of influence— including bribery and corruption—to achieve preferred outcomes or policies. See Ackerman, Bruce The New Separation of Powers , 113 Harv. L. Rev. 633, 694 (2000) (“A failure to control [corruption] undermines the very legitimacy of democratic government. If payoffs are a routine part of life, ordinary people will despair of the very idea that they, together with their fellow citizens, can control their destinies through the democratic rule of law.”).
8 See Andrés, Solimano Political Instability, Institutional Quality and Social Conflict in the Andes, in Political Crises, Social Conflict and Economic Development: The Political Economy of the Andean Region 15, 38 (Solimano, Andres ed., 2005) [hereinafter Political Economy of the Andean Region] (comprehensively reviewing domestic legal and political institutions and measures of corruption and concluding that the Andean countries are “weak states” in which the “the rule of law is partial and incomplete, and… respect for civil rights and property rights is limited”). A recent World Bank study found that Andean countries fall in the bottom 25 percent of all states as measured by a comprehensive index of the rule of law. Kaufmann, Daniel et al., Governance Matters VI: Aggregate and Individual Governance Indicators , 1996–2006, World Bank Policy Research Working Paper 4280 (July 2007). For more detailed recent analyses, see Hammergren, Linn Envisioning Reform: Improving Judicial Performance in Latin America (2007); Jorge, L. Esquirol The Failed Law of Latin America , 56 Am. J. Comp. L. 75 (2008).
9 Database of ATJ Rulings, 1987–2007 (2008) (on file with authors). The ATJ recently published, on a different Web site from the one containing its judgments cited in note 4 supra, statistics on the number of decisions issued each year. Tribunal de Justicia de la Comunidad Andina, at <http://www.tribunalandino.org.ee/. These figures indicate that the ATJ issued a slightly higher number of decisions during this twenty–year period. Our database codes those ATJ decisions that are publicly available and can be downloaded from the Andean Community Web site.
10 See Karen, J. Alter Delegating to International Courts: Self–Binding vs. Other–Binding Delegation , 71 Law & Contemp. Probs. 37 (2008); Laurence, R. Heifer & Anne–Marie, Slaughter Why States Create International Tribunals: A Response to Professors Posner and Yoo , 93 Calif. L. Rev. 899, 931 (2005).
11 Project on International Courts and Tribunals, at < Oxford University Press Series on International Courts and Tribunals, at <–courts; The Law and Practice of International Courts and Tribunals: A Practitioners’ Journal (2002–).
12 See, e.g., Robert, O. Keohane Moravcsik, Andrew & Anne-Marie, Slaughter Legalized Dispute Resolution: Interstate and Transnational , 54 Int’l Org. 457, 458–60 (2000) (analyzing effectiveness of international tribunals as a function of three variables—independence, access, and embeddedness). For a recent debate over the relationship between independence and efficacy, compare Heifer & Slaughter, supra note 10, at 931–42 (explaining why states delegate authority to independent international tribunals), with Eric, A. Posner & John, C. Yoo Judicial Independence in International Tribunals , 93 Calif. L. Rev. 1, 8, 27 (2005) (arguing that the only effective international tribunals are “dependent” tribunals, meaning tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation).
13 See Heifer, Laurence R. & Anne-Marie, Slaughter Toward a Theory of Effective Supranational Adjudication , 107 yale L.J. 273, 308 (1997) (describing how European courts strategically “manipulated] factors within their control to maximize their impact on the relevant national actors”). For recent analyses of whether international courts should engage in judicial activism, see Bartels, Lorand The Separation of Powers in the WTO: How to Avoid Judicial Activism , 53 Int’l & Comp. L.Q. 861 (2004); Cavallaro, James L. & Brewer, Stephanie Erin Reevaluating Regional Human Rights Litigation in the Twenty–first Century: The Case of the Inter–American Court , 102 AJIL 768 (2008); Lowe, Vaughan Advocating Judicial Activism: The ITLOS Opinions of Judge Ivan Shearer , 2005 austl. Y.B. Int’l L. 145, 151–52.
14 See, e.g., Keohane, Moravcsik, & Slaughter, supra note 12, at 478 (positing that liberal democracies will be more receptive to efforts to “embed international law in domestic legal systems”); Anne-Marie, Slaughter A Liberal Theory of International Law , 94 ASIL Proc. 240, 241–45 (2000) (arguing that domestic regime type in general and liberal democracy in particular are important factors for explaining compliance with international commitments).
15 See, e.g., Heifer & Slaughter, supra note 13; Stein, Eric Lawyers, Judges, and the Making of a Transnational Constitution , 75 AJIL 1 (1981); Weiler, J. H. H. The Transformation of Europe , 100 Yale L.J. 2403 (1991).
16 Cf Blum, Gabriella Islands of Agreement: Managing Enduring Armed Rivalries (2007) (analyzing why islands of successful cooperation sometimes persist in interstate relationships principally characterized by armed conflicts).
17 The collapse of the Doha Round of trade talks at the World Trade Organization provides a recent and salient example. See Pruzin, Daniel & Eric, J. Lyman Doha Talks Collapse over U.S.–India Dispute on Ag Safeguards; Future of Round in Doubt , WTO Rep. (BNA) (July 30, 2008).
18 For a discussion of how to promote international cooperation over time by expanding subject matter or membership rules, see Kenneth, W. Abbott & Snidal, Duncan Pathways to International Cooperation, in The Impact of International Law on International Cooperation: Theoretical Perspectives 50 (Benvenisti, Eyal & Hirsch, Moshe eds., 2004).
19 The eight regional courts and the dates of their establishment are the Court of Justice of the African Union (2003), the Caribbean Court of Justice (2002), the Court of Justice for the Common Market of Eastern and Southern Africa (1993), the Common Court of Justice and Arbitration of the Organization for the Harmonization of Corporate Law in Africa (1993), the Economic Court of the Commonwealth of Independent States (1993), the European Free Trade Area Court (1992), the Central American Court of Justice (1991), and the Court of Justice for the Arab Maghreb Union (1999). Project on International Courts and Tribunals, at see also <. Other important regional trade and economic agreements, including NAFTA, MERCOSUR, and the ASEAN –China Free Trade Area, establish quasi–judicial or arbitral dispute settlement mechanisms.
20 The four war crimes courts are the International Criminal Tribunal for the Former Yugoslavia (1993), the International Criminal Tribunal for Rwanda (1994), the International Criminal Court (1998), and the International Criminal Tribunal for Sierra Leone (2003). Hybrid tribunals were established in response to atrocities in Sierra Leone, Kosovo, East Timor, and Cambodia. See Project on International Courts and Tribunals, supra note 19.
21 See, e.g., Alter, supra note 5, at 57–58.
22 See supra note 2.
23 Cartagena Agreement, supra note 1.
24 For more on the Andean Pact, see O’Keefe, Thomas Andrew Latin American Trade Agreements 1, 1–5 to 1–7 (1997); Salgado Germánico, Peña Herrera Viable Integration and the Economic Co–operation Problems of the Developing World , 19 J. Common Mkt. Stud. 175 (1980); Wionczek, Miguel S. The Rise and the Decline of Latin American Economic Integration , 9 J. Common Mkt. Stud. 49, 59–61 (1970).
25 See Horton, Scott Peru and Ancom:A Study in the Disintegration of a Common Market , 17 Tex. J. Int’l L. 39, 49 (1982).
26 David, E. Hojman The Andean Pact: Failure of a Model of Integration? 20 J. Common Mkt. Stud. 139 (1981); see also Berry, Albert & Thoumi, Francisco Import Substitution and Beyond , 5 World Dev. 89 (1977); Thorp, Rosemary The Post–Import–Substitution Era: The Case of Peru , 5 World Dev. 125 (1977).
27 In 1970, for example, the member states agreed to internal free trade for products that no country had a stake in protecting. A common external tariff was projected to be in place by 1980, but member countries continued to disagree about the tariff throughout the 1980s and early 1990s. See Avery, William P. & James, D. Cochraine Innovation in Latin American Regionalism: The Andean Common Market , 27 Int’L Org. 181, 191–92 (1973); Hojman, supra note26, at 140, 147–51, 156–59; Osvaldo Saldías, Supranational Courts as Engines of Disintegration: The Case of the Andrean Community 23–25 (Free Univ. of Berlin Working Paper on European Integration No. 5, 2007), available at <http://www.fu–berlin.de/polsoz/polwiss/europa/arbeitspapiere/2007–5_Saldías.pdf.
28 Treaty Creating the Andean Tribunal of Justice, May 28, 1979, 18 ILM 1203 (1979) [hereinafter ATJ Treaty]. The Tribunal, which has its headquarters in Quito, Ecuador, is composed of one judge for each member nation of the Andean Community. Judges must be nationals of a member state and of high moral character, and either fulfill the conditions for exercising the highest judicial office in their countries of origin or be jurisconsults of recognized competence. Each judge is appointed by a unanimous decision of the member states from a slate of three candidates submitted by each country. Judges are “fully independent” and serve for a six–year term that may be renewed once. Id., Arts. 7–9. For additional information on the ATJ and its operations, see Toledo, Ricardo Vigil Dispute Settlement in Andean Community Law, in Inter–Governmental Trade Dispute Settlement: Multilateral and Regional Approaches 245 (Lacarte, Julio & Granados, Jaime eds., 2004).
29 ATJ Treaty, supra note 28, Arts. 17–31; E. Barlow, Keener The Andean Common Market Court of Justice: Its Purpose, Structure, and Future , 2 Emory J. Int’l Disp. Resol. 39, 49–58 (1987).
30 Database of ATJ Rulings, supra note 9. The Tribunal dismissed the only noncompliance case, filed by a private litigant in 1987, on standing grounds. Case 1–AI–87, 1–incump–87 (Oct. 22, 1987) (Aluminio Reynolds).
31 See Williamson, John What Washington Means by Policy Reform, in Latin American Adjustment: How Much Has Happened? 7, 7–20 (Williamson, John ed., 1990).
32 For a comprehensive analysis, see Dezalay, Yves & Bryant, G. Garth Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (2002).
33 See Thomas, Andrew O’Keefe How the Andean Pact Transformed Itself into a Friend of Foreign Enterprise , 30 Int’l Law. 811, 818 (1996) (describing how Andean governments “reformulate[d]… the entire philosophical underpinnings of the Andean Pact” and promoted “the adoption of free market–oriented economic policies by all the member states”).
34 Interviews with Monica Rosell, former legal secretary of the ATJ and attorney in the Legal Advisor’s Office of the Secretariat General, Quito, Ecuador (Mar. 17, 2005), & Chicago, Ill. (Apr. 1, 2007).
35 Treaty Creating the Court of Justice of the Cartagena Agreement, Art. 25, as amended by Protocol of Cochabamba (May 28, 1996), available at <http://www.comunidadandina.org/ingles/normativa/ande_trie2.htm [hereinafter Revised ATJ Treaty].
36 Id., Art. 34 (amending ATJ Treaty to authorize the ATJ to “refer to th[e] facts [in dispute] when essential for the requested interpretation”). The Cochabamba Protocol also authorizes the ATJ to hear three other types of cases: complaints against a Community body that “abstain [s] from carrying out an activity for which it is expressly responsible,” arbitrations, and Community labor disputes. Id., Arts. 37–40. The ATJ has rarely exercised these functions.
37 This effort included publication of reports by the General Secretariat describing its efforts to promote Andean integration and the creation of an Andean Community Web site. Interviews with Rosell, supra note 34.
38 Cartagena Agreement, supra note 1, Art. 27 (now Art. 55).
39 The Decisions on these subjects referred to in this article are described in table 1. The Andean Community has also adopted common regional legislation concerning other intellectual property issues, including copyright and neighboring rights (Decision 351 of 1993), the rights of breeders of new plant varieties (Decision 345 of 1993), and access to genetic resources (Decision 391 of 1996). All Andean Decisions are available in Spanish on the Andean Community Web site, <http://www.comunidadandina.org/.
40 Decision 85 gave Andean countries six months to implement its provisions. Later Decisions came into force when published in the Official Gazette and had direct effect as of that date. See Case 26–IP–2002, at 13 (May 2, 2002) (interpreting Dec. 344).
41 Robert, M. Sherwood & Primo Braga, Carlos Alberto Intellectual Property, Trade And Economic Development: A Road Map For The Ftaa Negotiations 14 (1996), available at <ns.kreative.net/ipbenefits/download/roadmap.rtf. As interpreted by the ATJ, Andean IP Decisions permit member states to adopt national IP rules, but only if such rules are consonant with regional standards. See, e.g., Case 2–IP–88, at 3–4 (May 30, 1988) (interpreting Dec. 85) (adopting the principle of “indispensable complement” pursuant to which member states are limited to enacting “complementary measures that are strictly necessary for the implementation of the Community [IP] norm,… that favor the application of the Community norm and by no means obstruct or nullify it”).
42 See Frederick, M. Abbott Bargaining Power and Strategy in the Foreign Investment Process: A Current Andean Code Analysis , 3 Syracuse J. Int’l L. & Com. 319, 349–50 (1975).
43 See Inter–Am. Dev. Bank, Office of Evaluation and Oversight, Evaluation of MIF Projects: Market Functioning: Promotion of Competition and Consumer Protection, MIF/GN–78–14 (2003) (discussing “second generation” Washington Consensus reforms that emphasized the governments’ provision of public goods and services, including intellectual property).
44 Laurence, R. Heifer Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking , 29 Yale J. Int’l L. 1, 18–24 (2004). For the TRIPS Agreement, see Agreement on Trade–Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Apr. 15, 1994, in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Trade Negotiations 321 (1999) [hereinafter TRIPS Agreement].
45 Susan, K. Sell Power and Ideas: North–South Politics of Intellectual Property And Antitrust 113–40 (1998).
46 See Manrique, Roberto Salazar The Andean Community’s Intellectual Property Regime, in The Andean Community and the United States: Trade and Investment Relations in the 1990S at 212, 218 (Rodriguez, Miguel et al. eds., 1998); Interview with Alfonso Vidales Olviedo, former head of the Secretariat General Office of the Legal Adviser and chief negotiator of Decision 85, Lima, Peru (June 22, 2007).
47 Manrique, supra note 46, at 216–17.
48 This focus on agency regulation of newly liberalized markets is often referred to as the “second generation” of Washington Consensus reforms. See Inter–Am. Dev. Bank, supra note 43.
49 The literature on this point is vast. For a recent survey, see Gilardi, Fabrizio Jordana, Jacint & David, Levi–Faur Regulation in the Age of Globalization: The Diffusion of Regulatory Agencies Across Europe and Latin America 15 (IBEI [Institut Barcelona d’estudis internacionals] Working Paper No. 2006/1), available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960739.
50 On the origins of indecopi, see Michael, P. Ryan Intellectual Property Institutions and the Public Administration of Knowledge in Developing Countries: The Case of Indecopi in Peru, in The Roles of the State in Competition and Intellectual Property Policy in Latin America: Towards an Academic Audit of Indecopi 319 (Boza, Beatriz ed., 2000); David, G. Becker Justice for Peruvian Consumers? INDECOPI and Consumer Protection (Sept. 2001) (Paper presented at the 23d Int’l Congress of the Latin American Studies Ass’n) (on file with authors).
51 See Colombia Ministry of Commerce, Industry and Tourism, Superintendencia de Industria y Comercio, at <http://www.sic.co/ [hereinafter SIC].
52 Bolivia created the National Intellectual Property Service (SENAPI) in 1996; Venezuela created a similar agency, the Servicio autónomo de la propiedad intelectual (SAPI), one year later; and in 1998 Ecuador established the “Ecuadorian Institute of Intellectual Property (EIIP), a public juridical entity with its own assets and administrative, economic, financial and operative autonomy.” Cecilia Falconi Perez, Ecuador: New Intellectual Property Law (Oct. 28, 1998), at <http://www.grain.org/bio–ipr/?id=91 ; see also U.S. Dep’t of State, Office of the Coordinator for Business Affairs, Bolivia Country Commercial Guide (1996); Telephone interview with Ricardo Colmenter, former legal counsel for the SAPI (Mar. 19, 2007).
53 Becker, supra note 50, at 9 (characterizing INDECOPI as having “some of the autonomy possessed by independent U.S. governmental agencies such as the Federal Trade Commission”); see also Ruiz, Manuel Sociedad peruana de derecho ambiental, IP–Related Technical Co–operation, Assistance and Capacity Building: The Peruvian Experience (July 2005) (ICTSD Dialogue on Technical Cooperation for IP Policy in Developing Countries, Geneva) (“INDECOPI is… perceived by the Peruvian public (in many public polls) as an institution which maintains its institutional autonomy and is thus not affected by political pressures”).
54 In Peru, for example, President Fujimori appointed Beatriz Boza, “a distinguished associate of a New York law firm and the respected chair of the Committee on Inter–American Affairs of the Association of the Bar of the City of New York, to the presidency of INDECOPI’s Board of Directors.” Boza, in turn, recruited a staff of young, proreform economists and lawyers, many with foreign training or work experience. Becker, supra note 50, at 10. For a more detailed analysis of similar trends throughout Latin America, see Dezalay, Yves & Garth, Bryant G. The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States 176–80 (2002); Dominguez, Jorge I. Technopols: Freeing Politics and Markets in Latin America in the 1990S (1997).
55 Interviews with officials of INDECOPI, Lima, Peru (June 21, 2007). Meetings funded by WIPO encouraged the formation of these networks. See Ruiz, supra note 53 (stating that “co–operation between the Andean Community, WIPO and national IP authorities has been constant over the years”).
56 As we explain below, the IP agencies’ consumer protection mandate contributed to the consumer protection concerns that have been a prominent feature of ATJ jurisprudence. See infra text at notes 119–20.
57 Article 121 of Decision 313 provided a mandate “to strengthen, foster the autonomy of and modernize the competent national [IP] offices, and the information systems and services in accordance with the latest technology.” Common Code on Intellectual Property, Dec. 313 (1992), reprinted in 32 ILM 182 (1993).
58 Interviews with Rosell, supra note 34.
59 Various scholars have found that engaging the actors charged with implementing an agreement increases support for and compliance with international rules. See, e.g., Cichowski, Rachel The European Court and Civil Society: Litigation, Mobilization and Governance 13–21 (2007); Harold, K. Jacobson & Weiss, Edith Brown Assessing the Record and Designing Strategies to Engage Countries, in Engaging Countries: Strengthening Compliance With International Environmental Accords 511 (Harold, K. Jacobson & Weiss, Edith Brown eds., 1998).
60 We document the rising number of applications to register trademarks and patents in the first section of part II infra.
61 E.g., Interview with José Barreda, Barreda Moller law firm, Lima, Peru (June 18, 2007); Interview with Carlos Olarte, partner, Olarte Raisbeck & Frieri Ltda, Bogotá, Colombia (Sept. 10,2007); Interview with Marcel Tangerife, Tangarife Torres & Associates, Lima (Sept. 10, 2007).
62 Database of ATJ Rulings, supra note 9. This figure contrasts with the much smaller number of noncompliance rulings (70) and nullification rulings (28) during the same period, revealing that preliminary rulings constitute approximately 93 percent of all ATJ decisions. Id. Scholars and attorneys in the Andean region have noted the importance of ATJ preliminary rulings. See, e.g., Perotti, Alejandro Daniel Algunas consideraciones sobre la interpretación prejudicial obligatoria en el derecho andino , Gaceta jurÍdicade la Comunidad europea (ser. D) No. 213, May/June 2001, at 90; Vigil Toledo, supra note 3, at 942.
63 Data for figure 1 were taken from Database of ATJ Rulings, supra note 9.
64 Clifford, J. Carrubba & Murrah, Lacey Legal Integration and Use of the Preliminary Ruling Process in the European Union , 59 Int’l Org. 399 (2005).
65 Sweet, Alec Stone The Judicial Construction of Europe 72 (2004).
66 One IP–related issue is strikingly absent from these statistics— disputes relating to Andean Community Decision 391(1996), which regulates access to genetic resources. Rosell, Monica Access to Genetic Resources: A Critical Approach to Decision 391 ‘Common Regime on Access to Genetic Resources’ of the Cartagena Agreement– , 6 Rev. Eur. Cmty. & Int’l Envtl. L. 274 (1997).
67 Interview with Judges Marco Antonio Velilla Moreno, Martha Sofía San Tobón, Dr. Rafael E. Ostau de Lafont Pianeta, and Camilo Arciniegas Andrade, Council of State of Colombia, First Section, Bogota (Sept. 12, 2007) [hereinafter Interview with judges of the Council of State]; Interview with Judge Elcira Vásquez Cortez, then head of the Judicial Control Office and member of the Constitutional and Social Chamber of the Supreme Court of Justice of Peru, Lima (June 21, 2007); Interview with Judges Eloy Torres Guzmán, president of the court and of Chamber 1, and Ernesto Muñoz Borrero, president of Chamber 2, Administrative Tribunal for District No 1 Quito, Ecuador (Mar. 15, 2005).
68 Data for figure 2 were taken from Database of ATJ Rulings, supra note 9. We discuss the patterns of national court references to the ATJ in greater detail in another paper. Laurence R. Heifer & Karen, J. Alter Building Judicial Supranationaltsm in the Andes: Understanding Preliminary Reference Patterns in the Andean Community , 41 N Y U J Int’l L. & Pol. (forthcoming 2009).
69 Differences in national judicial structure partly explain why Colombia is the source of most ATJ referrals. In contrast to other member states, in Colombia IP agency registration decisions are appealable to the First Section of the Council of State, a first and last instance administrative court separate from the remainder of the judicial system. The members of the Council come from a variety of backgrounds and are appointed for an eight–year nonrenewable term, after which they return to their former careers. Our interviews disclosed that Council members do not vie for judicial promotions, nor are they committed to protecting domestic judicial power. Interview with judges of the Council of State, supra note 67. They have thus been amenable to the court–to–court collaborations that ATJ preliminary references require.
70 Interview with Judges Torres Guzmán and Muñoz Borrero, supra note 66; Interview with Judge Galo Pico Mantilla of the ATJ, 1987–1993, Quito (Mar. 17, 2005).
71 General Secretariat [GS] Res. 171, Infringement Decree No. 51–98 (Dec. 17, 1998) (Ecuador); GS Res. 210 (Mar. 31, 1999) (Ecuador) (responding to a motion to reconsider Res. 171).
72 GS Res. 459, Infringement Decree No. 38–2000 (Dec. 5, 2000) (Peru); GS Res. 771, Infringement Decree No. 173–2003 (Sept. 22, 2003) (Peru).
73 El principio de cooperatión judicial entre el Tribunal andino y los tribunales nacionales en el marco de la Comunidad andina (Nov. 28, 2003), available at <http://www.cajpe.org.pe/RIJ/Memorias/principiol.htm; Interview with Judge Vásquez Cortez, supra note 66.
74 Database of ATJ Rulings, supra note 9.
75 Revised ATJ Treaty, supra note 35, Art. 33 (stating that the obligation of national judges to refer cases applies to cases in which an Andean rule “is litigated” as well as disputes in which Andean rules “should be applied”).
76 The ATJ announced the doctrines of direct effect and supremacy of Andean Community law in its earliest rulings—citing landmark ECJ judgments.See, e.g., Cases 1—IP—87 (Dec. 3, 1987), & 2–IP–88,supra note 41 (both interpreting Dec. 85, see table 1, p. 9 supra). The member states later incorporated the direct effect principle into Andean Decisions. See Case 26–IP–2002, supra note 40, at 13.
77 See, e.g., Richard, H. McAdams The Expressive Power of Adjudication , 2005 U. Ill. L. Rev. 1043, 1045–49 (2005); Posner & Yoo, supra note 12, at 28. Noncompliance may indicate that a regime is ineffective, but compliance in itself does not mean that an international rule or institution is effective. See Downs, George et al, Is the Good News About Compliance Good News About Cooperation? 50 Int’l Org. 379 (1996).
78 See, e.g., Krasner, Stephen International Regimes 5–10 (1983); Raustiala, supra note 6, at 388.
79 Data for figures 3 and 4 were provided by WIPO, Statistics Data and Indicators, at <http://www.wipo.int/ipstats/en/statistics/. In figures 3 and 4, trademark and patent application data for Peru from 1998 to 2006 were provided by indecopi; and trademark application data for Colombia were provided by SIC. No data were available for some countries in some years.
80 Patent and trademark applications filed by individuals or businesses in other Andean countries are counted as nonresident applications.
81 See 3 Mccarthy on Trademarks and Unfair Competition §20:2 (4th ed. 2007) (describing trademark opposition procedures); Mark, D. Janis Rethinking Reexamination: Toward a Viable Administrative Revocation System for U.S. Patent Law , 11 Harv. J.L. & Tech. 1, 28, 93–117 (1997) (reviewing patent and trademark opposition rules in several national jurisdictions).
82 Data for figure 5 were taken from Database of ATJ Rulings, supra note 9.
83 Interview with Giancarlo Marcenaro Jimenez, head of Industrial Property Division, SIC, Bogotá (Sept. 12, 2007); Interview with Nestor Escobedo, head of indecopi Patent Office, Lima (June 21, 2007).
84 To take just three salient examples: the U.S. shipping giant UPS, the European food conglomerate Nestlé, and the Colombian food producer Alpina each participated in more than ten agency registration proceedings—as both applicants and opponents—as well as national court appeals and ATJ preliminary rulings to protect their respective trade and service marks in the region. See, e.g., Case 223–IP–2005 (Feb. 2, 2006) (interpreting Dec. 344) (UPS); Case 146–IP–2005 (Sept. 20, 2005) (interpreting Dec. 486) (Nestlé); Case 238–IP–2005 (Mar. 24, 2006) (interpreting Dec. 344) (Alpina); see also Database of ATJ Rulings, supra note 9.
85 Interview with Dr. Gustavo Romero and Carolina Guerrero, Firma Romero Arteta Ponce, Quito (Mar. 16, 2005) [hereinafter Interview with Firma Romero Arteta Ponce].
86 Interview with Barreda, supra note 61.
87 Interview with Juan Pablo Bonilla, Estudio Ernesto Rengifo, Bogotá (Sept. 13, 2007).
88 See, e.g., Latin Am. Intell. Prop. Newsl. (Baker & McKenzie), Mar. 2004 ; Intell. Prop. Update (Raisbeck, Olarte & Ltda, Frieri), Sept. 2007 ; Interview with Barreda, supra note 61; see generally Newsletter (Barreda Moller law firm), at <http://www.barredamoller.com/english/bm_publica.asp.
89 For the Anuario’s Web site, see <http://www.anuarioandino.com/index.htm.
90 See, e.g., Interview with Barreda, supra note 61; Interview with Alvaro Correa, Ricardo Metke, Georgette Otero, and Mauricio Bello, Raisbeck, Lara, Rodríguez & Rueda (a member of Baker & McKenzie International) (Sept. 11, 2007); Interview with Escobedo, supra note 83; Interview with Marcenaro Jiménez, supra note 83; Interview with Teresa Mera Gómez, member of INDECOPI Tribunal, Lima (June 21, 2007); Interview with Olarte, supra note 61; Interview with Tangerife, supra note 61.
91 For representative examples, see infra part III.
92 See, e.g., Buscaglia, Edgardo & Long, Clarisa U.S. Foreign Policy and Intellectual Property Rights in Latin America 28 (Hoover Essays in Public Policy, 1997) (asserting that “[i]merest groups representing pirate industries are currently buying the votes of members of Latin American legislatures where the enactment of patent laws seems more likely”); Becker, supra note 50, at 27 (asserting that, prior to the creation of INDECOPI, disputes involving major foreign investors would have been resolved through “back channels”).
93 See, e.g., Case 90–IP–2004, at 3, 5, 6 – 8 (Aug. 25, 2004) (interpreting Dec. 344) (Procter & Gamble) (likelihood of confusion); Case 162–IP–2004, at 7, 11 (Jan. 26, 2005) (interpreting Dec. 344) (Nestle) (famous trademarks);
Case 49–IP–2005, at 5 (Apr. 14, 2005) (interpreting Dec. 344) (Gillette) (patentability).
94 The ATJ does not follow acte claire, an ECJ doctrine that directs national judges to refrain from referring copycat cases and instead to apply earlier ECJ rulings. See Case 283/81, Srl cilfit v. Ministry of Health, 1982 ECR 3415, 3430. Two recent articles have considered whether Andean judges should follow the ECJ’s example. See Patricio Bueno, Martínez & Perotti, Alejandro Daniel La teoría del acto aclarado. ¿Resulta necesaria su aplicación en el marco de la interpretación prejudicial andina? DÍkaion, Nov. 2005, at 133 (Universidad de La Sabana, Colom.); Perotti, supra note 63, at 4–6. A 2006 ATJ ruling instructing the Colombian Council of State to “look at precedent” in previous cases involving pharmaceutical trademarks suggests that the Tribunal may be ready to do so. Case 164—IP–2006, at 12 (Mar. 6, 2007) (interpreting Dec. 486) (directing die Council of State to apply ATJ decisions in Cases 172–IP–2005 (Nov. 25, 2005) (interpreting Dec. 344) and 34–IP–2006 (Apr. 31, 2006) (interpreting Dec. 486) (Merck)).
95 See, e.g., Case 4–IP–2001 (May 2, 2001) (interpreting Dec. 344) (Novartis); Case 45–IP–2006 (Apr. 19, 2006) (interpreting Dec. 344) (Warner Lambert).
96 E.g., Interviews with attorneys in IP law firms in Bogota and Lima
97 Several attorneys, who requested anonymity, stated that they would not use a preliminaty reference to challenge a domestic law as contrary to an Andean Decision or to the Cartagena Agreement. Instead, they would bypass national judges and file a noncompliance action with the General Secretariat and then, if that body rejected the case, with the ATJ. For a more detailed discussion, see Heifer & Alter, supra note 68.
98 Interview with judges of the Council of State, supra note 67.
99 Interview with Mera Gómez, supra note 90.
100 Interview with Marcenaro Jiménez, supra note 83.
101 SIC, Compendio de Doctrina: Propiedad Industrial (2005) (on file with authors).
102 Interview with Colmenter, supra note 52.
103 Cf. Guillermo, O’Donnell On the State, Democratization and Some Conceptual Problems: A Latin American View with Glances at Some Postcommunist Countries , 21 World Dev. 1355, 1357 (1993) (stating that” [t] he effectiveness of the law… consists of innumerable habituated behaviors that (consciously or not) are usually consistent with the prescriptions of the law”).
104 Two examples suffice to illustrate this point. First, in Case 9–IP–99, the ATJ stated that it was “required” to repeat its analysis because the Colombian SIC continued to refer to the Tribunal’s preliminary rulings as merely persuasive authority. Case 9–IP–99, at 5 (June 11, 1999) (interpreting Dec. 344) (Procter & Gamble). The Tribunal quoted its earlier ruling in Case 4–IP–97 (Jan. 20, 1998) (interpreting Dec. 344), where it stated that “it is strange for this Community Tribunal, that after having clarified repeatedly and precisely the nature and reach of the preliminary reference, the national competent office of a country can still consider this only a probatory piece of evidence.” Case 9–IP–99, supra, at 5–6. Second, in Case 25–IP–2002, a patent applicant challenged a prior ATJ ruling prohibiting the registration of pipeline patents—a ruling we analyze in part III infra. Case 25–IP–2002, at 2 (May 8, 2002) (interpreting Dec. 344). In direct contravention of this earlier ruling, the applicant argued that the Tribunal had no competence to review the validity of a national law, even one that conflicts with Andean Decisions. The ATJ categorically rejected this claim. Id. at 18–19.
105 These factual omissions exist in decisions spanning the first decade of ATJ rulings. See, e.g., Case l–IP–87, supra note 76; Case 3–IP–88 (Sept. 9,1988) (interpreting Dec. 85) (Daimler–Benz); Case 1–IP–91 (Feb. 8,1991) (interpreting Dec. 85); Case2–IP–91 (Feb. 26,1991) (interpreting Dec. 85);Case4–IP–93 (Sept. 20,1993) (interpreting Dec. 85); Case6–IP–93 (Feb. 25,1994) (interpreting Dec. 85); Case7–IP–96 (Aug. 29,1997) (interpreting Dec. 85 & Dec. 344). For an example of an ATJ request for additional factual information and information regarding national laws, see, for example, Case 70–IP–2002, at 3 (Sept. 4, 2002) (interpreting Dec. 344) (Joseph E. Seagram & Sons) (citing Case 30–IP–99 (Sept. 3, 1999) (interpreting Dec. 344)).
106 These forms appear to be a fairly recent phenomenon, suggesting that the ATJ created them after receiving many referrals that did not contain an adequate record.
107 See, e.g., Case 9–IP–95, at 2–4 (Sept. 19, 1995) (interpreting Dec. 85, Dec. 313, & Dec. 344) (stating that the SIC had forgotten about its prior registration of a trademark, leading to the registration of two similar trademarks in the same category in violation of Andean law); Case 9–IP–97, at 2 (Feb. 4, 1998) (interpreting Dec. 344), discussed in 89 Trademark Rep. 252, 274 (1999) (chiding SIC for registering a trademark without investigating whether it conflicted with any previously registered trademarks and rejecting the agency’s justification that no oppositions had been filed during the registration process).
108 Case 39 –IP–98, at 6 (Mar. 26, 1999) (interpreting Dec. 344) (“Siendo evidente que una asociación de Laboratories Farmacéuticos tiene, prima facie, un interés legítimo en materia de patentes farmacéuticas para recurrir u oponerse en defensa de la norma lesionada.”).
109 Case 5–IP–99, at 6–7 (Oct. 25, 2000) (interpreting Dec. 344).
110 Id. at 7–8.
111 Case 16–IP–2003, at 7 (Mar. 12, 2003) (interpreting Dec. 344).
112 Case 44–IP–2006, at 10 (May 3, 2006) (interpreting Dec. 344).
113 See, e.g., Case 35–IP–98 (Oct. 30, 1998) (interpreting Dec. 344) (instructing the national judge to determine whether the administrative agency had appropriately justified its decision). For the ATJ’s view of what qualifies as an appropriately reasoned opinion, see Case 04–AN–97 (Aug. 17, 1998) (nullifying Junta Res. 435 (1996)).
114 See Schauer, Frederick Giving Reasons , 47 Stan. L. Rev. 633 (1995).
115 See, e.g., Case 28–IP–96, at 11–12 (Oct. 31, 1997) (interpreting Dec. 344) (stating that the determination of whether a trademark is famous “should not be the product of simple intuition” about a particular mark; rather, the determination of fame “shall be the product or the consequence of a previous analysis, procedure or investigation… along with the evidence presented by the parties”).
116 In Case 27—IP—95, the ATJ stressed the need for “administrative and economic autonomy to free officials from any kind of pressures or influences that derogate from the ends or purposes of the defense of a trademark for the owner as well as for the public or consumer.” Case 27–IP–95, at 15 (Oct. 25, 1996) (interpreting Dec. 344). The Tribunal went so far as to state, in dictum, that the failure to provide such autonomy “implies an infringement that violates the ends and purposes of [Andean] laws.” Id.
117 International Trademark Association, Glossary, available at <http://www.inta.org/; see also Moss, Marianna Trademark “Coexistence” Agreements: Legitimate Contracts or Tools of Consumer Deception? 18 Loy. Consumer L. Rev. 197, 209 (2005).
118 See, e.g., Moss, supra note 117, at 210–13 (reviewing U.S. law); John, M. Murphy The Confusing Similarity Standard in Mexican Trademark Law , 96 Trademark Rep. 1182, 1190 (2006) (reviewing Mexican law).
119 Dec. 486, Art. 136(f) (2000) (prohibiting the registration of trademarks that “consist of a sign that infringes the industrial property rights… of a third party, except where the consent of the latter has been obtained”) (emphasis added).
120 See Interview with Mera Gómez, supra note 90. For examples of cases invalidating coexistence agreements, see SIC Res. 18176 (July 30, 2004), reprinted in Compendio de Doctr1na, supra note 101, at 398–401; Annual Review, Twelfth Annual International Review of Trademark Jurisprudence , 95 Trademark Rep. 267, 348 (2005).
121 See Sell, supra note 45, at 191—92; Roffe, Pedro with Spennemann, Christoph & Braun, Johanna von From Paris to Doha: The WTO Doha Declaration on the TRIPS Agreement and Public Health, in Negotiating Health: Intellectual Property and Access to Medicines 9, 13 (Roffe, Pedro et al. eds., 2006).
122 Pipeline patents protect inventions that were ineligible for protection under prior domestic legislation:
123 Manrique, supra note 46, at 217.
124 Case 6–IP–94 (Dec. 9, 1994) (interpreting Dec. 344).
125 General Secretariat officials chose this case to demonstrate their support for the ATJ. They also wanted the Tribunal to penalize a clear violation of Andean rules and thereby to affirm the supremacy of the Andean Community’s balanced approach to IP protection in the area of pharmaceutical patents. Interviews with Rosell, supra note 34.
126 Dec. 344, Art. 143(1993).
127 Case 1–AI–96 (Oct. 30, 1996).
128 Manrique, supra note 46, at 217.
129 Case l–AI–96, supra note 127, at 30.
130 Case 25–IP–2002, supra note 104, at 18.
131 U.S. Trade Representative, Third Report to the Congress on the Operation of the Andean Trade Preference Act 37 (Jan. 31, 2001), available at <http://www.ustr.gov/asset/Trade_Development/Preference_Programs/ATPA/asset_upload_file215_3783.pdf?ht=.
132 The situation with respect to the twenty–three pipeline patents registered prior to the ATJ’s ruling was more complex. In 1998 the Ecuadoran national director of industrial property confirmed the validity of these patents. In response, the ATJ concluded that the director’s decision upholding the registrations was a further infringement of Andean law, and it imposed sanctions on Ecuador. Proceso 1–AI–96, at 1–2 (July 28,1999) (imposing sanctions reducing, from 60 to 50 percent, the national origin preference of the FOB value of Ecuadoran products until Ecuador revoked the twenty–three pipeline patents). The following year, an Ecuadoran administrative court ruled that the government was required to nullify all acts that violated the ATJ’s ruling. Case 25–IP–2002, supra note 104, at 19. We have been unable to confirm that the IP agency has revoked these twenty–three pipeline patents. However, we infer from the fact that the ATJ continues to receive occasional preliminary references concerning these patents that not all of them have been nullified.
133 See Harrison, Christopher Scott The Politics of the International Pricing of Prescription Drugs 103–10 (2004) (describing how the United States pressured Argentina and Brazil to protect pipeline patents for pharmaceuticals in 2000 and 1997, respectively); Shadlen, supra note 122, at 6–9, 15–19 (same, for Mexico in 1991). Uruguay recognized pipeline protection in 1999, see Law of Patents, Art. 127, Law No. 17.164 of Sept. 2, 1999, Diario Oficial, Sept. 2, 1999 (Uru.), available at <http://gpi.espaciolibre.net/2007/04/07/uruguay–ley–n%C2%BA–17164–patentes–de–invencion–modelos–de–utilidad–y–disenos–industriales. Chile, a founding member of the Andean Pact that withdrew in 1976 and returned as an associate member in 2006, has thus far resisted U.S. pressure to protect pipeline patents. See Lax, Jeffrey Note, A Chile Forecast for Accession to NAFTA: A Process of Economic, Legal and Environmental Harmonization , 7 Cardozo J. Int’l & Comp. L. 97, 112 (1999).
134 Dec. 486, Art. 21; Dec. 344, Art. 16.
135 Supreme Decree No. 010–97–ITINCI, El Peruano, June 6, 1997, at 149, 830, available at <http://www.glin.gov/view.action?glinID=52500.
136 Article 4 provided that “a distinct use included in the state of the art shall be the subject of a new patent if it complies with” the normal patent requirements of novelty, inventive step, and industrial applicability. Id.; see also Pascale Boulet Patents and Medicines in Peru 4 (Campaign for Access to Essential Medicines, Nov. 2001), at <http://www.aislac.org/pdf/documentos_interes?10_1_report.pdf;Ena Matos Jaqui Las patentes de segundo uso, La Hora (Ecuador) (n.d.), available at.
137 Case 89–AI–2000, at 40 (Sept. 28, 2001) (interpreting Dec. 344 & SG Res. 406).
138 Interviews with officials in indecopi‘s National Institute for the Defense of Competition and the Protection of Intellectual Property, Lima (June 21, 2007).
140 See Case 01–AI–2001, at 39 (June 27, 2002) (interpreting Dec. 344, SG Res. 424, 459) (judgment against Venezuela); Case 34–AI–2001, at 51–52 (Aug. 21, 2002) (interpreting Dec. 344) (judgment against Ecuador); see also Pacheco, Carlos & Nebrada, Maria Milagros Venezuela: How to Protect Inventions of Use , Managing Intell. Prop. (Supp. 2006), available at <http://www.managingip.com/?Page=17&ISS=22626&SID=654998.
141 See Multinational Pfizer no puede patentar principio activo del potenciador sexual Viagra en Colombia, ElTiempo.com, Jan. 6, 2009, at <http://www.eltiempo.com/colombia/justicia/multinacional–pfizer–no–puedepatentar–principio–activo–del–potenciador–sexual–viagra–en–colombia_4743402–1.
142 Case 01–AI–2001, supra note 140, at 11.
143 Id. at 36–37 (quoting Case 89–AI–2000, supra note 137).
144 Pacheco & Nebrada, supra note 140, at 3.
145 Pharmaceutical Research and Manufacturers of America (PhRMA), Special 301 Submission 236 (2008), available at <http://www.ustr.gov/assets/Trade_Sectors/Intellectual_Property/Special_301_Public_Submissions_2008/asset_upload_filel09_l4495.pdf.
146 The enactment dates of the relevant national laws are as follows: Argentina (2000), Chile (2005), El Salvador (2005), Guatemala (2000), Honduras (1999), Mexico (1994), Nicaragua (2000), Panama (1998), Paraguay (2001), and Uruguay (1999). For Brazil, see Basso, Maristela Intervention of Health Authorities in Patent Examination: The Brazilian Practice of the Prior Consent , 1 Int’l J. Intell. Prop. Mgmt. 54, 56–57 (2006).
147 See Cullen, Dolores Data Protection: The New IP Frontier—An Overview of Existing Laws and Regulations , 5 J. Generic Med. 9, 9–10 (2007).
148 See Dinca, Razvan The “Bermuda Triangle” of Pharmaceutical Law: Is Data Protection a Lost Ship? 8 J. World Intell. Prop. 517, 520–21 (2005).
149 As a result of these contestations, the current and former governmental officials whom we interviewed requested anonymity. We therefore do not provide the names of the individuals whom we interviewed concerning data protection issues.
150 Dec. 344, Art. 78; TRIPS, supra note 44, Art. 39.3.
151 Dec. 344, Art. 79; see also European Generic Medicines Association, TRIPS Article 39.3 Does Not Require Data Exclusivity Provisions—A Critical Issue for Access to Medicines (Position Paper, July 2000), available at <http://www.egagenerics.com/doc/ega_trips39.3_2000.pdf.
152 Interviews at the Colombia Ministry of Trade, Industry & Tourism, Bogotá (Sept. 14, 2007) [hereinafter Colom. Trade Ministry Interviews]; Interview with Dr. Alberto Bravo Borda, executive president of Asociación de industrias farmacéuticas colombianas (ASINFAR), Bogotá (Sept. 14, 2007); see also Oxfam International, Song of the Sirens, Why the US–Andean FTAs Undermine Sustainable Development and Regional Integration 11, Oxfam Briefing Paper, June 2006, available at <http://www.oxfam.org.uk/what_we_do/issues/trade/downloads/bp90_andeanftas.pdf (stating that “generics supply two thirds of the national market” in Colombia at “on average, a quarter the cost of their brand–name equivalents”).
153 See, e.g., Gaëlle, P. Krikorian & Dorota, M. Szymkowiak Intellectual Property Rights in the Making: The Evolution of Intellectual Property Provisions in U.S. Free Trade Agreements and Access to Medicine , 10 J. World Intell. Prop. 388 (2007).
154 Office of the U.S. Trade Representative, 2003 Special 301 Report—Executive Summary at 6 (May 1, 2003), available at <http://www.ustr.gov/Document_Library/Reports_Publications/2003/2003_Special_301_Report/Section_Index.html.
155 The United States threatened to exclude Colombia from the Andean Trade Preference Act—a statute that provides duty–free access to U.S. markets—and to cut economic aid (at the time totaling $7.5 billion) that the Colombian government relied upon to help reduce internal conflicts, combat the narcotics industry, and stimulate the economy. Diana Rodríguez Franco, The Globalization of Intellectual Property Rights: The Politics of Law and the Transformation of National and Transnational Legal Fields—The Struggles Behind the IP Chapter of the Colombian–U.S. Free Trade Agreement 25–26 (2008) (unpublished paper on file with authors).
156 The ATJ described this negotiating history in detail in Case 114–AI–2004, at 36–41 (Dec. 8, 2005) (interpreting Dec. 486).
157 Dec. 486, Art. 266.
158 Supreme Decree 2085 of 2002, Diario Oficial, Sept. 19, 2002 (Colom.), available at <http://www.presidencia.gov.co/prensa_new/decretoslinea/2002/septiembre/19/dec2085190902.pdf; see also Natalia, Tobón Colombia—New Found Protection for Test Data , Patent World, Dec. 2002 (on file with authors).
159 GS Res. 817, at 10 (Apr. 14, 2004).
160 Case 114–AI–2004, supra note 156. The case drew widespread attention from the pharmaceutical and generics industry associations, which participated in the case as interested third parties. The Asociación de Laboratories Farmacéuticos (ALAFAR) supported the petitioner ASINFAR, and the Asociación de Laboratorios Farmacéuticos de Investigación (AFIDRO) supported Colombia.
161 Our interviews revealed this to be a particular point of contention and criticism of the Tribunal. According to Colombian IP attorneys and officials in the Ministry of Trade, Colombia had agreed to the cryptic final sentence of Article 266 only after it received assurances from the other member states that it could adopt a five–year exclusive right to protect test data. Colom. Trade Ministry Interviews, supra note 152. This tacit understanding was not, however, memorialized in the drafting history, which indicated that Colombia’s efforts to retain a period of exclusive data protection were unsuccessful. See Case 114–AI–2004, supra note 156, at 41.
162 Case 114–AI–2004, supra note 156, at 41 (“[T] he Community interest that must regulate the marketing of pharmaceutical products… is directed to the protection of public health and the improvement of the standard of living of the inhabitants of the subregion.”).
163 Id. at 49 (“[T]he protection of test data or undisclosed information is protected by Decision 486, and consequently, member countries cannot protect their data in a different way and, much less, set a period of exclusivity not contemplated in the Community legislation.”).
164 See Disagreement over Data Protection Holding up Andean–US FTA , 9 Bridges Wkly. Trade News Dig., Sept. 28, 2005, at 4, at <http://ictsd.net/i/news/bridgesweekly/6192/.
165 Colom. Trade Ministry Interviews, supra note 152 (describing events following ATJ data protection ruling).
166 See Pharma International, Special 301 Report 2006—Colombia, available at <http://international.phrma.org/latin_america/colombia/special_301_report_2006_colombia (by subscription) (describing press release).
167 Dec. 632, pmbl. (Apr. 6, 2006), available in Eng. at <http://www.comunidadandina.org/ingles/normativa/D632e.htm.
168 PhRMA, Special 301 Submission 2007 at 257, available at <http://members.phrma.org/international/PhRMA_Special_301_Submission_2007.pdf.
169 Colom. Trade Ministry Interviews, supra note 152.
170 Dec. 632, supra note 167, pmbl. (quoting Case 7–AI–99, at 18 (Nov. 12, 1999)).
171 See Bernieri, Rosa Castro Intellectual Property Rights in Bilateral Investment Treaties and Access to Medicines: The Case of Latin America , 9 J. World Intell. Prop. 548, 563–64 (2006); Krikorian & Szymkowiak, supra note 153, at 400–01.
172 U.S. Trade Representative, National Trade Estimate Report on Foreign Trade Barriers 621 (2007), available at <http://www.ustr.gov/.
173 Colom. Trade Ministry Interviews, supra note 152.
174 See Cullen, supra note 147, at 9–10 & tbl. 1 (reviewing data protection rules in all developing countries, including those in Latin America, and describing U.S. successful effort to incorporate data protection in bilateral trade and investment treaties).
175 This aspect of the ATJ’s practice meets the standard definition of effectiveness used in IR literature, which measures whether an international rule or institution induces “desired changes in behavior that otherwise would not have occurred.” Raustiala, supra note 6, at 396.
176 Recall that budgets of several IP agencies were funded by patent and trademark application fees. See supra text at note 53.
177 See supra text at notes 58–59 & 119–20.
178 See supra text at note 66 (giving the subject matter breakdown of ATJ preliminary rulings).
179 See Health Ministry of Peru, Evaluation of Potential Effects of the Free Trade Agreement Being Negotiated with the United States on Access to Medicines (2005), available at <http://www.citizenstrade.org/pdf/peruvianhealthministry_impactofiponaccesstomeds_042005.pdf (unofficial translation of conclusions) (analyzing the consequences of increased data protection for the cost of medicines without mentioning Andean law or ATJ rulings).
180 See supra text at note 74 and fig. 2, p. 15.
181 E.g., Interview with Olarte, supra note 61; Interview with Augusto Rey, executive director, Asociación nacional de laboratorios farmacéuticos (ALAFARPE), Lima (June 19, 2007).
182 Interview with Colmenter, supra note 52.
183 See Case 01–AI–2001, supra note 140; Pacheco & Nebrada, supra note 140.
184 U.S. Dep’t of State, 2007 Investment Climate Statement—Venezuela, available at <http://www.state.gov/e/eeb/ifd/2007/80762.htm.
185 See, e.g., Anne-Marie (Slaughter), Burley & Mattli, Walter Europe Before the Court , 47 Int’l Org. 41, 60 (1993).
186 The analysis in this part builds upon the framework set forth in Karen, J. Alter The European Union’s Legal System and Domestic Policy: Spillover or Backlash? 54 Int’l Org. 489 (2000).
187 Dec. 462, Art. 23 (May 25, 1999); see also Arts. 20, 22. According to a lawyer who requested anonymity, the Colombian government invoked this provision to the advantage of the Alcatel corporation, which has close links to powerful families in that country.
188 Dec. 328, Arts. 15, 20 (Oct. 22, 1992).
189 Dec. 599, Arts. 7, 13, 14, 16, 17, 28, 30, 32, 33, 37, 39 (July 12, 2004). For more detailed analysis, see Luis, A. Arias et al., The Harmonization of Indirect Taxes in the Andean Community , Inter–Am. Dev. Bank Occasional Paper SITI–07 (2005), available at <http://idbdocs.iadb.org/wsdocs.getdocument.aspx?docnum=781731.
190 Inter–Andean trade accounted for only 3 to 5 percent of total trade during the Andean Pact period. See Avery & Cochraine, supra note 27, at 183; Hojman, supra note 26; Evolución del proceso de integratión 1969–1999, Comunidad andina [CAN] Doc. SG/di219/Rev.1, at 28 (Apr. 26, 2000) (on file with authors). In the last decade, trade between Andean countries has become marginally more important, peaking at 13 percent in 1998 but declining to less than 10 percent a few years later. See Miguel, RodrÍguez Mendoza Trade rules in the Making: Challenges in Regional and Multilateral Negotiations 96 (1999); Kuwayama, Mikio Latin American South–South Integration and Cooperation: From a Regional Public Goods Perspective 14, Economic Commission for Latin America and the Caribbean, Comercio Internacional Series No. 50 (2005). A related factor is that intraregional trade consists primarily of low–value–added finished goods, as opposed to intermediary products used in the production of high–value–added goods. Producers of these finished goods may gain from lowering intra–Andean trade barriers, but they may also face increased competition from producers of similar products in neighboring Andean countries, and thus be less enthusiastic about lowering market barriers. See Kuwayama, supra, at 33; Avery & Cochraine, supra, at 191–92.
191 Brummer, Chris The Ties that Bind? Regionalism, Commercial Treaties, and the Future of Global Economic Integration , 60 Vand. L. Rev. 1349, 1353 & n.7 (2007) (defining “‘open’ regionalism as that which extends the terms and benefits of regional integration to the rest of the world and ‘closed’ regionalism [as] that [which] locks in special benefits for members”); see also Mauricio, Baquero-Herrera Open Regionalism in Latin America: An Appraisal , 11 L. & Bus. Rev. Am. 139 (2005).
192 Acuerdo de complementatión económica No. 56, CAN–Mercosur, Dec. 6, 2002, available at <http://www.sice.oas.org/Trade/MR.CSR/acMerAns.asp. The dates of associate membership for Andean countries are Bolivia (1999), Peru (2003), and Ecuador, Colombia, and Venezuela (2004). Venezuela became a full member of Mercosur after withdrawing from the Andean Community in 2006. In 2004 the region’s presidents formed the South American Community of Nations. This new continental integration project seeks “the gradual convergence” of the Andean Community, Mercosur, Chile, and other South American countries. For a more detailed discussion, see Samuel, A. Arieti The Role of Mercosur as a Vehicle for Latin American Integration , 6 Chi. J. Int’l L. 761, 762–65 (2006).
193 See Karen, J. Alter Jurist Advocacy Movements in Europe: The Role of Euro–Law Associations in European Integration (1953–1975) [hereinafter Alter, Jurist Advocacy Movements], in The European Court’s Political Power: Selected Essays 61, 81–84 (2009) (discussing Cases 1–AI–87, supra note 30; 1–IP–90 (Sept. 18, 1990); and 3–IP–93 (July 13, 1993) involving regulation of the aluminum industry); Saldías, supra note 27, at 21–28 (reviewing ATJ decisions rejecting attempts by litigants to challenge national regulations that conflicted with an Andean Community policy goal, such as market liberalization).
194 Instead, it held that “the domestic judge is the one with the authority to determine if the product is included… in the Free Trade Program.” Case 3–IP–93, supra note 193, at 9.
195 Case 87–IP–2002, at 13 (Nov. 13, 2002) (interpreting various Decisions and an SG resolution).
196 In 1999 the INDECOPI administrative tribunal attempted to refer a case to the ATJ. The INDECOPI performs many of the same administrative review functions that in Colombia are performed by the Council of State—the administrative court that has referred two–thirds of the cases on the ATJ’s docket. Yet Andean judges rejected the INDECOPI referral, adopting the formalist position that only judicial bodies may request preliminary rulings. We found no written record of this decision, but its existence was confirmed by several Peruvian attorneys, judges, and government officials. The ATJ reversed course in 2007, ruling that IP agencies could refer cases following a final administrative decision. Case 14 –IP–2007 (Mar. 21, 2007) (interpreting the term “domestic judge” in the Revised ATJ Treaty, supra note 35, to include an administrative agency that carries out judicial functions). This change is likely to expedite ATJ review of agency registration decisions by obviating the need for appeals to national courts.
197 See Weiler, supra note 15.
198 For an additional explanation of the ATJ’s relative modesty, see Alter, Jurist Advocacy Movements, supra note 193.
199 For example, the ATJ’s jurisprudence on trademark coexistence agreements is entirely judge made, and it reflects the reality that INDECOPI and SIC have portfolios that include protecting consumer rights. See supra text at notes 117–20.
200 E.g., Interview with Firma Romero Arteta Ponce, supra note 85; Interview with Olarte, supra note 61; Interviews with Rosell, supra note 34; Interview with Tangerife, supra note 61.
There is still the option of filing a noncompliance action with the General Secretariat, and, through it, to the ATJ. It is possible that lawyers prefer this route. Noncompliance complaints involve a wider variety of issue–areas and have increased in number over time, suggesting that such complaints may be a more attractive way for private actors to challenge government policies. Whether this route is effective, however, is a different question. The Andean legal system authorizes sanctions if a member state refuses to implement an ATJ noncompliance ruling. A large number of such rulings have resulted in sanctions, which suggests that compliance is spotty. This issue merits further research.
201 In other areas of Andean integration, such as taxes and customs, domestic rules and institutions predated the Andean Pact and have continued to exist alongside it. Interview with Mauricio A. Plazas Vega Carrera, professor of law, Colegio mayor de Nuestra Señora del rosario de Bogotá, and founder, Mauricio A. Plazas Vega Abogados & Compañía, Bogotá (Sept. 14, 2007). For national actors in these areas, the Andean legal system appears to be more disruptive than facilitative, forcing changes in practices and partially divesting national actors of their legal and interpretive authority. For additional discussion, see Heifer & Alter, supra note 68.
202 E.g., Interview with judges of the Council of State, supra note 67; Interview with Judge Vásquez Cortez, supra note 67.
203 See Scheingold, Stuart The Law in Political Integration: The Evolution and Integrative Implications of Regional Legal Processes in The European Community (1971).
204 Revised ATJ Treaty, supra note 35, Art. 33.
205 For a discussion of the difficulties that many administrative agencies in Latin America face, see Inter–Am. Dev. Bank, The Politics of Policies: Economic and Social Progress in Latin America 67 (2006), available at <http://www.iadb.org/res/ipes/2006/index.cfm?language=En&parid=1 (comprehensive empirical analysis of Latin American administrative agencies concluding, inter alia, that “[t]he transition from authoritarian to democratic regimes has been linked to a certain tendency to further subordinate the bureaucracy to political control”).
206 On negative feedback loops, see Alter, supra note 186, at 512–15.
207 Jenny, S. Martinez Towards an International Judicial System , 56 Stan. L. Rev. 429, 430 (2003).
208 The literature analyzing the proliferation of international courts and tribunals is vast. For a recent survey, see Cogan, Jacob Katz Competition and Control in International Adjudication , 48 Va. J. Int’l L. 411 (2008).
209 See Karen, J. Alter Delegation to International Courts and the Limits of Recontracting Power, in Delegation and Agency in International Organizations 312, 331–34 (Hawkins, Darren et al. eds., 2006).
210 Heifer & Slaughter, Effective Supranational Adjudication, supra note 13, at 277; see also Kahler, Miles Conclusion: The Causes and Consequences of Legalization , 54 Int’l Org. 661, 675 (2000) (“compliance constituencies”); Alter, supra note 5, at 44–45.
211 Richard, H. Steinberg Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints , 98 AJIL 247, 249 (2004); see also Karen, J. Alter Agents or Trustees? International Courts in Their Political Context , 14 Eur. J. Int’l Rel. 33, 46–48 (2008); Heifer & Slaughter, supra note 10, at 942–54.
212 Cogan, supra note 208, at 415; Posner & Yoo, supra note 12, at 7 (asserting that “[tribunals are likely to be ineffective when they neglect the interests of state parties and, instead, make decisions based on moral ideals, [or on] the interests of groups or individuals within a state”); see also Robert, H. Bork Coercing Virtue: The Worldwide Rule of Judges 10 (2003) (“Judges of international courts… are continuing to undermine democratic institutions and to enact the agenda of the liberal Left or New Class.”).
213 See, e.g., Paul, B. Stephan Courts, Tribunals and Legal Unification—The Agency Problem , 3 Chi. J. Int’l L. 333 (2002).
214 Cogan, supra note 208, at 440; see also Laurence, R. Heifer Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes , 102 Colum. L. Rev. 1832 (2002) (explaining why three Caribbean countries withdrew from the jurisdiction of human rights tribunals after “overlegalization” of their treaty obligations generated domestic opposition to compliance with their decisions).
215 See, e.g., Moravcsik, Andrew Explaining International Human Rights Regimes: Liberal Theory and Western Europe , 1 Eur. J. Int’lRel. 157, 179–80 (1995) (arguing that “effective international institutions often presuppose established democratic legal and political orders and robust civil societies, within which domestic actors can work to assure compliance with international norms” and noting the absence of such conditions in Latin America); Keohane, Moravcsik, & Slaughter, supra note 12, at 478 (positing that liberal democracies will be more receptive to efforts to “embed international law in domestic legal systems”); Anne-Marie, Slaughter International Law in a World of Liberal States , 6 Eur. J. Int’l L. 503, 532–33 (1995) (predicting greater likelihood of compliance with international rules by countries that are liberal democracies).
216 See supra part III. For additional evidence, see Alter, Jurist Advocacy Movements, supra note 193; Saldías, supra note 27.
217 See Alter, supra note 209.
218 It is unclear whether the member states’ response to the data protection decision will influence future ATJ rulings. The sequence of events is similar to the European Barber Protocol, in which member states added a provision to the Maastricht Treaty to limit an ECJ ruling involving equal pay for men and women. Analyses of ECJ jurisprudence following the Barber Protocol found that this so–called sanction had little discernible effect on the Court’s case law. See Mark, A. Pollack The Engines Of European Integration: Delegation, Agency, And Agenda Setting In The EU 359–65 (2003); Sweet, Alec Stone The Judicial Construction of Europe 172–75 (2004).
219 Gerardo, L. Munck Democratic Politics in Latin America: New Debates and Research Frontiers , 2004 Ann. Rev. Pol. Sci. 437, 449.
220 See Hammergren, Linn Fifteen Years of Judicial Reform in Latin America: Where We Are and Why We Haven’t Made More Progress 5 (UN Dev. Programme 2002), available at <http://www.pogar.org/publications/judiciary/linn2/index.html#intro (“Latin American judiciaries have tended to be less functionally relevant and at the same time more politically penetrated than their European counterparts. While they have sometimes been manipulated by the powerful, they have just as often been ignored.”).
221 This domestic weakness is consistent with, and indeed a justification for, Latin American states’ longstanding support for regional organizations that promote adherence to international law. See Kacowicz, Arie Marcelo The Impact of Norms In International Society: The Latin American Experience, 1881–2001, at 55 (2005) (stating that “the attempt to focus the intraregional international relations of Latin America in legalistic terms can be derived from the structural and domestic weaknesses… of the Latin American states”).
222 Solimano, supra note 8, at 38; see also Kaufmann et al., supra note 8, at 4280 (reporting the results of a World Bank rule–of–law index that ranks Andean countries in the bottom 25 percent of all states); Andrés, Solimano Introduction and Synthesis, in Political Economy of the Andean Region, supra note 8, at 1, 1 (stating that “ [international rankings of quality of institutions as measured by indices of rule of law, effectiveness of regulation, control of corruption and others place the Andean group in a relatively low place” relative to other Latin American countries).
223 This suggests that liberal democracy is not an all–or–nothing category. Fragile democracies may have areas where the rule of law functions effectively, while robust democracies can have weak spots. See O’Donnell, supra note 103, at 1362.
224 The growth of the administrative state is a global phenomenon. For a recent analysis that emphasizes the proliferation of administrative agencies in Latin America, see Jordana, Jacint Toward a Latin American Regulatory State? The Diffusion of Autonomous Regulatory Agencies Across Countries and Sectors , 29 Int’l J. Pub. Admin. 335, 336–66 (2006). Our findings also suggest the need for additional research to examine the role of independent agencies in shaping the quality of democracy and the rule of law—a factor neglected in previous comparative studies about the quality of democracy. See Munck, supra note 219.
225 Alter, supra note 186, at 504–05.
226 ECOWAS–CCJ, Court of Justice of the Economic Community of West African States, at <http://www.aict–ctia.org/courts_subreg/ecowas/ecowas_home.html.
227 Kane, Ibrahima & Ahmed, C. Motala The Creation of a New African Court of Justice and Human Rights, in The African Charter On Human And Peoples’ Rights 406, 439 (Evans, Malcolm & Murray, Rachel eds., 2d ed. 2008); see also Anaba, Innocent SERAP, CDHR Ask Gambia Govt to Obey Ecowas Court Judgment , Vanguard (Nig.), June 28, 2008 , available in 2008 WLNR 12118179 (describing efforts of two NGOs to pressure the Gambia to comply with an ecowas court ruling ordering the release of a journalist and awarding compensation for unlawful detention); Polgreen, Lydia Court Rules Niger Failed by Allowing Girl’s Slavery , N.Y. Times, Oct. 28, 2008, at A6 (describing a tribunal ruling ordering Niger to pay $19,000 in damages for failing to protect a young woman sold into slavery at age twelve); Okenwa, Lillian ECOWAS Court Must Uphold Citizenship, Human Rights , This Day (Nig.), Aug. 29,2006 , available at 2006 WLNR 15044380 (reporting statement by NGO Open Society Initiative West Africa that “there is a signal role for the Court of Justice of ECOWAS… in upholding the citizenship and human rights of West Africans”).
228 See Martor, Boris Pilkington, Nanette Sellers, David & SÉbastien, Thouvenot Business Law in Africa: Ohada and the Harmonization Process 9–12 (2002).
229 OHADA–CCJA, Court of Justice of the Organization for the Harmonization of African Business Law, at <http://www.aict–ctia.org/courts_subreg/ohada/ohada_home.html [hereinafter OHADA–CCJA].
230 Dickerson, Claire Moore Harmonizing Business Laws in Africa: OHADA Calls the Tune , 44 Colum. J. Transnat’l L. 17, 57, 70 (2005) [hereinafter Dickerson, OHADA Calls the Tune]. The larger barriers seem to be businesses themselves, which make decisions based on local norms rather than OHADA legal rules. Dickerson, Claire Moore The Cameroonian Experience Under OHADA: Business Organizations in a Developing Economy , 112 Bus. & Soc’y Rev. 191, 201 (2007) [hereinafter Dickerson, Cameroonian Experience].
231 Dickerson, OHADA Calls the Tune, supra note 230, at 58 n.l64 (citing interview with Seydou Ba, president of the OHADA Court); see also OHADA–CCJA, supra note 229 (stating that Côte d’Ivoire was the source of 116 of the 162 cases referred to the OHADA court between 1998 and 2003).
232 See supra text at note 69 & fig. 2 (illustrating history of national variation in patterns of referrals to the ATJ).
233 Dickerson, OHADA Calls the Tune, supra note 230, at 57 n. 162 (citing interviews with OHADA and Ivoirian judges).
234 For an analysis of OHADA’s influence outside the Côte d’Ivoire, see Dickerson, Cameroonian Experience, supra note 230, at 207–09.
235 Becker, supra note 50, at 20. This insight dovetails with recent empirical research demonstrating that, even in Europe, the opportunities to use international litigation to challenge domestic laws and policies vary by country, subject matter, and the material resources of public and private actors. See, e.g., Conant, Lisa Individuals, Courts, and the Development of European Social Rights , 39 Comp. Pol. Stud. 76 (2006); Cichowski, Rachel Courts, Rights and Democratic Participation , 39 Comp. Pol. Stud. 50 (2006).
236 For example, 72 percent of die docket of die European Court of Human Rights concerns “access to justice” issues. Cichowski, supra note 235, at 65.
237 We predict, however, that the region’s domestic IP agencies will continue to follow Andean IP rules, as the Venezuelan agency SAPI has done even since the country’s withdrawal from the Andean Community in 2006. See supra text at note 184.
238 See, e.g., Bull, Warren World View Divides Andean Neighbours , BBC News, Mar. 3, 2008, at <http://news.bbc.co.uk/2/hi/americas/7274209.stm.
239 For example, the most recent Andean IP legislation, Decision 689, adopted in August 2008, gives individual member states greater leeway to revise domestic IP protection standards. Colombia and Peru advocated a Decision that would allow them to adopt IP protection rules mandated in bilateral free trade agreements that they had negotiated with the United States. Bolivia opposed the dilution of regional IP standards but was outvoted by the other three member states. It has since threatened to file a noncompliance suit with the ATJ. See Kelechava, Erin Andean IP Changes Allow Peru to Sign US FTA , Managing Intell. Prop., Aug. 28, 2008, available at <http://www. managingip.com/Article.aspx?Article ID=2034179>.
240 South American Community of Nations, at <http://www.comunidadandina.org/INGLES/sudamerican.htm. For a more detailed discussion of the merger and some of the complications it raises, see Arieti, supra note 192, at 762–65.
241 A former president of the ATJ has suggested that his court could serve that role. See Toledo, Ricardo Vigil El Tribunal de justicia permanente de la Comunidad andina y el Mercosur , 2006–I Anuario, supra note 3, at 653.
* We are grateful for the financial support provided by the Center for the Americas at Vanderbilt and the Northwestern Dispute Resolution Research Center, which funded field research in Quito, Lima, and Bogotá. For helpful comments, we thank Graeme Austin, David Boyd, Gabriella Blum, Rachel Brewster, Daniel Drezner, Martin Flaherty, Diana Rodriguez Franco, Darren Hawkins, Thomas Lee, Katerina Linos, Arnulf Becker Lorca, Gerald Neuman, Kal Raustiala, Osvaldo Saldfas, Christopher Whytock, Ingrid .Wuerth, and the participants in the Fordham International Law-International Relations Colloquium, the Harvard Law School Faculty Workshop, the Harvard International Law-International Relations Workshop, the Tufts International Law-International Relations Seminar, the Texas Law School faculty workshop, and the Vanderbilt Roundtable on the Law and Politics of International Cooperation. Gilda Anahi Gutierrez, Elena Herrero-Beaumont,Karla Quintana-Osuna, and Rebecca Stubbs provided superb research assistance.
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